Mielle v Transport Accident Commission
[2018] VCC 1221
•29 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04102
| JOEL DIDIER MIELLE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2018 | |
DATE OF JUDGMENT: | 29 August 2018 | |
CASE MAY BE CITED AS: | Mielle v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1221 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – injury to left knee – whether the pecuniary disadvantage and pain and suffering consequences are “serious”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Abbas v Transport Accident Commission [2015] VSCA 217; Richards & Anor v Wylie [2000] VSCA 50
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC Mr T Storey | Arnold Thomas & Becker |
| For the Defendant | Mr A Moulds QC Mr P Bourke | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 4 June 2014, the plaintiff was a passenger in a car driven by his wife which collided into an oncoming car which had crossed onto the wrong side of the road.
2 The plaintiff suffered a number of injuries including an injury to his left knee which he contends has resulted in a serious long-term impairment or loss of the function of his left knee.
3 Mr V Morfuni QC appeared with Mr T Storey of counsel for the plaintiff. Mr A Moulds QC appeared with Mr P Bourke of counsel for the defendant.
The issues
4 The defendant conceded plaintiff had suffered a long-term impairment or loss of the function of his left lower limb, but that the consequences of the impairment are not serious.
The medical evidence
5 There was little in the medical evidence that was controversial. I propose to summarise it briefly.
6 The plaintiff was conveyed by ambulance to the Dandenong Hospital. His other injuries were of greater concern to the medical practitioners who attended on him than his left knee injury.
7 The plaintiff was admitted to the Dandenong Hospital, where a number of routine steps were taken to understand the nature and extent of the injuries which he had suffered. He was complaining of pain in his left lower limb which resulted in him having an x-ray.[1] It did not demonstrate any abnormality.
[1]Plaintiff’s Court Book (“PCB”) 53
8 Subsequently, the plaintiff was discharged, but later, presented to the Royal Melbourne Hospital on 9 June 2014 complaining of left leg and ankle pain associated with swelling and bruising.[2] It would appear that he did not require any particular treatment at that stage. He was discharged.
[2]PCB 66 and 71-72
9 The plaintiff then saw Dr Steer, general practitioner, at a clinic at Epic Health Mornington. He subsequently saw Dr Aizen, general practitioner, at the same clinic. The plaintiff first saw Dr Aizen on 11 September 2014 for treatment.
10 On that occasion, Dr Aizen recorded that Dr Steer had referred the plaintiff to physiotherapy. He had physiotherapy over a three-month period, which resulted in some improvement in the condition of his left knee. Dr Aizen recorded that the plaintiff could not squat because of a lack of flexion in his knee and because of pain, and that he had a sensation of radiation of pain along the lateral calf of his left leg, something like a pinched nerve. He noted, on examination, that there was no effusion, loss of flexion, but otherwise no abnormality. Specifically, he noted that there was no meniscal tenderness.[3]
[3]Defendant’s Court Book (“DCB”) 91
11 Mr Wilson, physiotherapist, treated the plaintiff. I assume he was the physiotherapist to whom the plaintiff had been referred by Dr Steer. He noted that the plaintiff had suffered a loss of range of motion in his left knee and that there was some swelling. After treating the plaintiff, he considered that his progress had plateaued. He suspected that the plaintiff had suffered an intra-capsular injury. He suggested that the plaintiff return to Dr Aizen for further investigations into the cause of his left knee pain.[4]
[4]PCB 73
12 The plaintiff admitted to having very little subsequent medical treatment, nor use of any medication. According to Dr Aizen’s clinical notes, the next occasion he saw the plaintiff for treatment for his left knee was on 19 January 2018. On that occasion, Dr Aizen noted that the plaintiff was complaining of ongoing leg pain. I infer that the reference to the ongoing leg pain is probably a reference to his left knee.[5]
[5]DCB 95
13 Other than the treatment I have just summarised, the plaintiff has not had any other medical treatment, even though it has been suggested that he might consider obtaining the opinion of an orthopaedic surgeon.
The medico-legal examinations
14 Before turning to the medico-legal examinations, I should next deal with a report of Dr Aizen dated 25 February 2015 which he sent to the Transport Accident Commission. In that report, he was of the opinion the plaintiff’s soft tissue injury to his left lower limb had fully resolved.[6]
[6]DCB 89-90
15 For reasons which will become plain shortly, I do not accept the opinion of Dr Aizen. The short summary of the other medical opinions demonstrate that the plaintiff suffered an injury to his left knee with an identifiable pathological process responsible for the pain and restriction of movement which he experiences. I propose to follow the lead of counsel and concentrate on the opinions of the orthopaedic surgeons.
16 The plaintiff saw Mr Love, orthopaedic surgeon, on 14 April 2015. He obtained a history that the plaintiff struck his left knee against the dashboard of the car in which he was travelling. On examination, he found a mild restriction of movement on flexion, but otherwise no joint line tenderness. He considered that the plaintiff had suffered a mild degree of post-traumatic chondromalacia of the patella. He considered that the plaintiff would be left with some permanent mild degree of left knee discomfort, but he was otherwise optimistic that the plaintiff’s left knee would not deteriorate significantly over time. He did not consider that his capacity for work had been affected by the injury.[7]
[7]DCB 96-97
17 Mr Miller, orthopaedic surgeon, examined the plaintiff on 26 February 2018. On examination, he found left quadriceps wasting of 1 centimetre, loss of flexion, some effusion, and some mild patellofemoral joint crepitus and pain on patella compression. He considered that the plaintiff had clinical features suggestive of post-traumatic chondromalacia patella. He considered that the plaintiff was at a low risk of developing arthritic disease, and otherwise his prognosis was good.[8]
[8]PCB 84-90
18 Mr Dickinson, orthopaedic surgeon, examined the plaintiff on 16 March 2018. On examination, he found left quadriceps wasting of 1 centimetre, some effusion, but no crepitus. Otherwise, he found a full range of motion. He considered that the plaintiff had suffered a direct blow to his left patella. He considered that there was a physical basis for the residual symptoms complained of by the plaintiff.[9]
[9]DCB 11-15
19 Dr Elder, consultant in occupational and environmental medicine, examined the plaintiff on 8 March 2016. He considered that there was significant laxity of the anterior and posterior cruciate ligaments in the left knee. He found 2 centimetres of quadriceps wasting.
20 Dr Slesenger, occupational physician, examined the plaintiff on 11 January 2018. He considered that the plaintiff had suffered a medial meniscal injury, but no quadriceps wasting.
21 Neither Dr Elder nor Dr Slesenger profess expertise in orthopaedic medicine. I do not accept their opinions of ligamentous laxity or meniscal injury. I prefer the opinions of the orthopaedic surgeons. In that respect, it would appear that the plaintiff suffered a direct blow to his left knee which has resulted in the development of chondromalacia patella which is the source of the modest loss of flexion and modest level of pain experienced by the plaintiff.
The Plaintiff’s consequences
22 I propose to deal with each of the discrete consequences contended for by the plaintiff in the following way.
Pecuniary disadvantage
23 Some time prior to the transport accident, the plaintiff commenced what he described as a new career in filmmaking.[10] He conducted his filmmaking business through a company known as Intermedia Art Pty Ltd, which was the trustee for the Mielle Family Trust.[11]
[10]Transcript 59
[11]Transcript 58
24 The plaintiff purchased a cinema camera known as a RED Scarlet cinema camera.[12] The camera is large and heavy. The equipment associated with it includes battery packs, sandbags, lighting, tripods and similar equipment. In order to arrive at places where filming was to be undertaken, he would need to carry the camera and all of the equipment manually. That sometimes involved walking, climbing, traversing uneven terrain and using ladders.[13]
[12]Transcript 54
[13]PCB 8
25 The plaintiff was unable to pursue filmmaking because of the problems he was having with his left knee. The projects which he intended to undertake were small budget films which he produced, funded and filmed himself.[14] He referred to two films which I understood to be examples of his filmmaking. The first was “The Naked Picnic” which he made prior to the transport accident, and indeed, he and his family had attended a showing of it on the very day of the occurrence of the transport accident. The other film which he referred to was the “Experiencing the Knowing” filmed in 2014 or 2015. His part in the making of that film was undertaking the actual filming.
[14]Transcript 31
26 The plaintiff did not make any money from the making of The Naked Picnic.[15] He was paid a daily fee of $50 to cover expenses for the 30 days he was engaged upon filming Experiencing the Knowing. The filming occurred over some two to two-and-a-half months. It was described as still being “in the can”, meaning that the editing is not complete, and the date upon which it will be open for public exhibition is unknown. The plaintiff expects to obtain a one-sixth share of any profit that it might generate.[16]
[15]Transcript 38
[16]Transcript 32-35
27 The effect of the plaintiff’s evidence was that he had lost the chance to pursue a filmmaking career. However, there was no evidence adduced by the plaintiff to demonstrate what his filmmaking career would have been if he had not suffered the left knee injury.
28 The plaintiff was referred to a summary of his taxation returns prepared by his solicitors. What the summary reveals is that the plaintiff suffered a loss for the financial years ending 2013, 2014 and 2015, but subsequently, in the years ending 2016 and 2017, he realised a net taxable profit. The summary contains the following relevant financial material:
· For the year ending 30 June 2013, a total business income of $27,919, and after expenses, a loss of $17,056.
· For the year ending 30 June 2014, a total business income of $11,966, and after expenses, a loss of $12,920.
· For the year ending 30 June 2015, a total business income of $29,094, and after expenses, a loss of $2,865.
· For the year ending 30 June 2016, a total business income of $50,585, and after expenses, a net taxable profit of $13,599.
· For the year ending 30 June 2017, a total business income of $48,016, and after expenses, a net taxable profit of $9,644.
29 Despite relying on the summary of his taxation returns, the plaintiff seemed to be nonplussed by what it disclosed. Indeed, he was unable to verify the content of the summary and how it was that his gross income increased in the years ending 30 June 2016 and 2017.[17]
[17]Transcript 38-40
30 Apart from undertaking the filming of Experiencing the Knowing, the plaintiff otherwise used the camera on a stand to make short film clips.[18] He sold the camera a few years ago.[19] Otherwise, he has developed a business based upon his interest in cooking and travel. He posts video clips on YouTube, and places posts on Facebook about cooking and travel.
[18]Transcript 58
[19]Transcript 54
31 The plaintiff has travelled quite extensively since 2016. He travelled to France and Italy between 11 July and 12 August 2016.[20] He travelled to Singapore in April 2017 for about five days.[21] He travelled to Lebanon on 24 July 2017, where he did a television interview, and from Lebanon, he went to Paris, returning to Australia on 13 August 2017.[22] He travelled to Bali some time in 2017.[23] He travelled to Thailand in 2018.[24] Recently, he travelled to Sri Lanka.[25] The purpose of his travel was connected to his business interests based upon cooking and travel. That is evident from the excerpts of his Facebook pages included in the defendant’s court book.[26]
[20]Transcript 41
[21]Transcript 42
[22]Transcript 42-43
[23]Transcript 43
[24]Transcript 43
[25]Transcript 43
[26]PCB 5, 12-13 and DCB 35-85
32 The plaintiff added that he was engaged in property development which generated profit which he used while making efforts to build up his filmmaking career. He and his wife purchased a house in Tasmania and two in Victoria. The relevant properties were:
· A property in Glenorchy, Tasmania where most, if not all, of the renovation work was undertaken by tradespeople.[27] The plaintiff did not refer to the purchase price, the cost of renovation or the sale price. A profit was made on its sale.[28]
[27]PCB 18
[28]Transcript 27
· A property purchased in September 2006 for $276,000, with $25,000 spent on renovations. It was sold for $414,500 giving a gross profit of $113,500.
· Another property was purchased in 2009 for $384,000, with $53,000 spent on renovations. It was sold for $490,000 giving a gross profit of $53,000.
33 The plaintiff was asked how much actual profit he made from the sale of the two properties. Under cross-examination, he said that the profit from the first property was used to purchase the second property, which must mean that the gross profit from property development is $53,000. During re-examination, he gave a different answer, that the gross profit was the combination of the gross profit from both, amounting to $166,500.
34 Counsel for the plaintiff submitted that the plaintiff’s loss of chance in pursuing a filmmaking career is a significant consequence of the impairment of function of his left knee. Counsel for the defendant submitted that the submission is flawed for several reasons: Firstly, the plaintiff was unable to demonstrate that it was profitable, and, secondly, there was no evidence to demonstrate that it had any chance of being profitable and providing him with a career which he now says he has lost.
35 I was referred to Abbas v Transport Accident Commission[29] in which the Court of Appeal dealt with this very issue:
“While, as the respondent submitted, Glover was a very different case on the facts, compared to the present case, at least one point may be derived from it: a pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over an applicant’s life, is not presently productive of actual loss of income at the time of the application. The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capacity for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. To dismiss the issue of pecuniary disadvantage by reference to the fact that the applicant’s income had increased in each year between 2010 and 2012, was to disregard the totality of the applicant’s circumstances and, in the circumstances of this case, constituted specific error on the part of the judge. The fact that the applicant might always be able to find and hold down employment notwithstanding his injuries does not preclude proper consideration of the issue of pecuniary disadvantage caused by a real limitation that has been imposed upon the applicant in respect of other employments for which has demonstrated suitability.”
[29][2015] VSCA 217 at paragraph [37]
36 So, the fact that the plaintiff has not demonstrated that the loss of his filmmaking career was not productive of an actual loss, and the fact that he has earned more since giving away that career, do not militate against the plaintiff’s evidence amounting to a consequence resulting from the impairment of the function of his left knee. He has lost the flexibility of being able to undertake filmmaking.
37 However, as the Court of Appeal also observed, proof of pecuniary disadvantage on its own is not enough to meet the relevant threshold. It is the consequences of both pecuniary disadvantage and pain and suffering which are to be judged by comparison with other cases in the range of possible impairments or losses to determine whether the same can fairly be described as “at least very considerable” for the applicant to be entitled to succeed.[30]
[30]at paragraph [39]
38 I am satisfied that the plaintiff is unable to use the camera as he was able to prior to suffering the impairment of the function to his left knee. However, it occurs to me that that was but part of a broader aspect of the work in filmmaking. The work he has subsequently pursued relevant to cooking and travel appear to me to have been part of his broader attack on the world of filmmaking. He is well able to pursue that, so it would appear to me that he has lost part of what was encompassed by his filmmaking career, not all of it.
39 Another aspect of the plaintiff’s pecuniary disadvantage is the interference with his capacity to undertake property development. The first property he and his wife purchased was in Glenorchy, Tasmania. Most, if not all, of the renovation work was undertaken by tradespeople.[31] The plaintiff did not refer to the purchase price of that property, or the cost of renovation or the sale price. A profit was made on its sale.[32]
[31]PCB 18
[32]Transcript 27
40 The plaintiff was asked why he had not undertaken any property development since 2009. He said that it was the market downturn in property prices which affected his decision not to engage in any further property development.[33] He said he was waiting for that downturn to resolve before he would go back into property development. It is quite clear, whatever the market is, and has been, he has not engaged in any similar activity.
[33]Transcript 36
41 The real complaint made by the plaintiff is that it is his inability to actually undertake the renovations on properties himself which is part of the profit making and part of his loss of enjoyment of life, because the physical nature of the work involved places too much strain on his left knee.[34]
[34]The plaintiff exhibited two DVDs demonstrating his level of involvement in property development
Pain
42 The plaintiff describes the pain he experiences as follows:
· Nagging ache-like pain every day, which fluctuates.
· Worsening pain on sitting for extended periods.
· Worsening pain on standing for extended periods.
· Sleep is affected by pain. The pain and numbness in his left knee often wakes him, making it difficult for him to return to sleep.
· The range of motion in his left knee is restricted. He finds it difficult and painful to kneel, squat and bend the knee.
43 The plaintiff has rarely seen medical practitioners for treatment for his left knee since the early episodes of hospital treatment and seeing Dr Steer, Dr Aizen and the physiotherapist. He has not taken any medication for pain relief.
44 The orthopaedic surgeons have given opinions which leave me with the strong impression that despite some quadriceps wasting, effusion and loss of flexion, that the plaintiff otherwise does not have any significant loss of function in his left knee. Mr Miller for example, considered that the plaintiff could return to his pre-injury duties as a filmmaker, but he said that if there were “large amounts of prolonged” standing, walking, twisting, turning, kneeling and squatting, that the plaintiff would have difficulty undertaking that work. It is not my impression that the plaintiff’s filmmaking work involved large amounts of those prolonged postures. Mr Miller, again as an example, considered that the plaintiff is able to enjoy leisure activities, but on the plaintiff’s account of things, he considered that he would have a reduced capacity for identified leisure activities such as cycling on a daily basis and running.
45 I think the plaintiff’s complaints of pain and the consequences of pain which I have just summarised need to be seen in the context of the opinions of the orthopaedic surgeons who do not impress me as saying that he has particularly significant problems interfering with his capacity to function in a broad sense in domestic and recreational activities.
Loss of enjoyment of life
46 The plaintiff identifies a number of domestic and recreational activities which he is no longer able to engage in as vigorously as he once did:
· He rode a mountain bike every day on roads and dirt tracks. He is now limited to short rides about once a week or less.[35]
[35]PCB 8 and 13, and Transcript 51
· He was a keen runner, regularly running for an hour at a time. He can now manage about 10 minutes or less.[36]
[36]PCB 8 and 13
· He finds gardening difficult when it involves kneeling.[37]
[37]PCB 12 and 13
· He owns a Suzuki 850 cc motorcycle. He rides it about twice a year. He can ride a motor scooter, as he did when he travelled to Italy.[38]
· He has a fear riding his motorcycle, although, his Facebook page shows him riding around Flinders without any apparent concern.[39]
[38]Transcript 48-49 and Transcript 54
[39]Transcript 53
Richards & Anor v Wylie
47 Richards & Anor v Wylie[40] stands for the proposition that seriousness can be measured in part by mental response to a physical impairment.
[40][2000] VSCA 50 at paragraph [17]
48 The plaintiff was examined by Dr Tagkalidis, psychiatrist, on 23 March 2018. On the history that he obtained from the plaintiff of interference with his overall functioning, Dr Tagkalidis considered that the plaintiff was suffering from an Adjustment Disorder with Depressed Mood which was predominantly frustration. He suggested that the plaintiff obtain treatment from a psychologist.[41]
[41]PCB 91-100
49 Counsel for the plaintiff submitted that the plaintiff’s emotional response to the impairment of the function of his left knee is a consequence to be considered.
Impression
50 It is my overall impression that the consequences contended for by the plaintiff do not satisfy the statutory test.
51 The evidence does not demonstrate that the plaintiff is particularly disabled by the effect of pain. He is able to function at a moderately high level, which is made plain by the fact that he is able to work in a preferred field of activity, to travel, to endure the physical demands of travel, and to otherwise engage in domestic activity without interference except for some marginal interference with his capacity to undertake gardening.
52 This is made even more demonstrable by the plaintiff’s response to pain. He has not had any medical treatment at all since the early hospital treatment, treatment by Dr Steer and Dr Aizen, and the physiotherapist. The pain is not significant enough for him to resort to even over-the-counter medication for pain relief.
53 If the plaintiff really does have an emotional response to the pain and its consequences as described by Dr Tagkalidis, then there is really little to be found in his evidence pointing to him being at all troubled by such an emotional response. The fact that plaintiff has a diagnosed clinical disorder must be seen in the broader context of the plaintiff’s response to pain. That broader context demonstrates that his response to pain is modest at best.
54 I accept the plaintiff’s evidence that he has some pain in his left knee, some effusion and minor quadriceps wasting, but otherwise the opinions of the orthopaedic surgeons impress me that what injury the plaintiff has suffered and the extent to which it is likely to impair him is rather modest.
55 I accept that the plaintiff has difficulty running, riding his mountain bike as often as he did previously, and also his motorcycle, but they by themselves are insufficient, in my opinion, to demonstrate consequences which meet the statutory test.
56 I have paid proper regard to the affidavit of the plaintiff’s wife, Susanne Mielle, who confirms much of what the plaintiff says about pain, his response to pain and the consequences of the impairment of the function of his left knee, in reaching the conclusion that the consequences of the impairment of the function of the plaintiff’s left knee do not meet the statutory test.
Conclusion
57 I am not satisfied that the plaintiff has suffered a serious long-term impairment or loss of the function of his left knee. Therefore, I dismiss his Originating Motion with costs.
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